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en-usEngadget is a web magazine with obsessive daily coverage of everything new in gadgets and consumer electronicsCopyright 2018 AOL Inc. The contents of this feed are available for non-commercial use only.https://www.joystiq.com/2011/07/04/lgj-on-brown-v-entertainment-merchants-assn/https://www.joystiq.com/2011/07/04/lgj-on-brown-v-entertainment-merchants-assn/https://www.joystiq.com/2011/07/04/lgj-on-brown-v-entertainment-merchants-assn/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

I believe I likely owe you an apology. LGJ should have covered this decision the day it was issued, but unfortunately, sometimes clients have to come first. So here we are, a few days after the decision, and the topic has been covered in great detail. I have read the decision, but have largely avoided other coverage of the case so that I could give you my opinion without being impacted by other analysis. Since I imagine most coverage has largely been focused on the majority opinion alone, I will also be discussing the concurring and dissenting opinions. As always, this is simply my opinion on the decision, and to that end, there is some room for people to disagree.

This was, in short, about the best possible outcome, both for the game industry and for the public at large, that could have been expected. It was also an opinion that was the most consistent with existing case law and contemporary First Amendment legal theory. The most important aspect to this case was the court stating fairly unequivocally that new and different forms of media shouldn't be treated any differently simply because they are new and different forms of media. Ultimately, obscene content is obscene content, and though some media may have an easier time crossing the line than others, that doesn't mean the line moves.
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ab-1179californiaemalawlaw-of-the-gamelaw-of-the-game-on-joystiqlawsuitlgjschwarzenegger-v-emascotussupreme-courtMon, 04 Jul 2011 18:45:00 -040011|19981842https://www.joystiq.com/2011/01/22/lgj-morrowind-mod-mayhem/https://www.joystiq.com/2011/01/22/lgj-morrowind-mod-mayhem/https://www.joystiq.com/2011/01/22/lgj-morrowind-mod-mayhem/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

There's been quite the uproar over the past few weeks over Morrowind 2011, the now defunct project which collected and harmonized some 4GB of The Elder Scrolls III: Morrowind mods to make the game "appealing" to a current audience. To some this sounded like a way to pass the time until Skyrim released, to others this was "illegal." Let's see if we can piece together some of the story here to explore just where the rights of modders lay, both with respect to the original developer and with respect to one another.

The most complete account I've been able to find is here, which boils down to the person who compiled and released Morrowind 2011 didn't have permission from any of the people who created the original mods in the package. I suggest everyone read both the article and the comments, as they summarize most of the points made by both sides of this debate. He did go to great lengths to put the package together and, more importantly, all of the documentation on how to make the mods work together, as apparently Morrowind mods can be a bit unruly. When credits were added to the package, the mod makers were still unhappy, and many words like "illegal" were thrown out on the table.

The mod pack has been pulled, but there's been quite a bit of legal analysis thrown out by both the Morrowind 2011 side and the mod makers side. Since mod rights can be a complex issue, this seemed like a good time to discuss the mod issue.
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columnslawlaw-of-the-gamelaw-of-the-game-on-joystiqlgjmark-methenitismorrowindmorrowind-2011pcthe-elder-scrolls-3-morrowindSat, 22 Jan 2011 02:00:00 -050011|19809322https://www.joystiq.com/2010/11/05/lgj-blizzard-cheating-and-copyright-infringement/https://www.joystiq.com/2010/11/05/lgj-blizzard-cheating-and-copyright-infringement/https://www.joystiq.com/2010/11/05/lgj-blizzard-cheating-and-copyright-infringement/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Everyone else is talking about the Supreme Court, but I'm going to hold off on any further commentary until we have an actual decision to analyze. Instead, I want to bring your attention back to a suit filed by Blizzard in California, Blizzard v. VanKuipers, Simpson, and John Does 1-10 (aka the GameThreat.net case). This case seems to be the sequel of sorts to the "Glider" case from the not too distant past (Blizzard v. MDY Industries). In short, that case was about a World of WarCraft "autopilot" program called Glider. Glider circumvented Warden (the WoW cheat protection software). The short version of the result from that case is that MDY Industries, the maker of Glider, was held liable for contributory and vicarious copyright infringement for putting out Glider, which violated WoW's End User License Agreement and Terms of Service. The opinion also upheld Blizzard's right to sue over issues that diminished the player experience.

That brings us to the GameThreat.net case. Some of this should sound pretty familiar. GameThreat.net put out a series of StarCraft 2 hacks and cheats, which worked in multiplayer. These programs were available very shortly after the launch of StarCraft 2, and that, of course, irritated Blizzard, which sent a cease and desist of some sort. While it may have initially appeared the two were in compliance, Blizzard discovered they have re-distributed their source code to others, who have continued to make it available. As a result, Blizzard is suing on basically the same premise as Glider. As is often the case, the ideas here present a bit of a double-edged sword.
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columnslaw-of-the-gamelegallgjmacmark-methenitispcstarcraft-2Fri, 05 Nov 2010 23:00:00 -040011|19703389https://www.joystiq.com/2010/09/15/lgj-are-game-resales-at-risk/https://www.joystiq.com/2010/09/15/lgj-are-game-resales-at-risk/https://www.joystiq.com/2010/09/15/lgj-are-game-resales-at-risk/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

A new decision out of the 9th Circuit court of appeals is potentially bad news for GameStop, eBay, gamers and pretty much anyone who buys software. The full decision in Vernor v. Autodesk is available here [PDF], but this column should provide a pretty good summary and analysis of the case, which deals primarily with a legal concept called the "first-sale doctrine." The doctrine, which falls under copyright law, is what allows libraries to lend books, DVDs, CDs, etc., and what allows for the concept of resale.

The first-sale doctrine was added to the Copyright Act of 1976 after being introduced in case law in 1908. In short, the doctrine lets you, as the purchaser of a legal copy of a book, movie, game, or other copyrighted work, resell or give away that legal copy to subsequent owners without permission from the copyright holder. It doesn't give you any rights to the work protected by the copyright, or the ability to otherwise violate the copyright by making copies of the work; it only removes the copyright holder's control over legal, physical copies of the work after they are first sold to a consumer. In other words, GameStop's business owes everything to this doctrine.
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9th-circuit-court-of-appealscolumnseulafirst-salefirst-sale-doctrinelaw-of-the-gamelegallgjresalesoftwarevernor-v-autodeskWed, 15 Sep 2010 22:00:00 -040011|19633903https://www.joystiq.com/2010/08/31/lgj-wheres-my-refund/https://www.joystiq.com/2010/08/31/lgj-wheres-my-refund/https://www.joystiq.com/2010/08/31/lgj-wheres-my-refund/#comments

Downloadable content isn't something you can simply take back to GameStop or sell on eBay. And even if you know where to ask, can you get a refund for broken content? That's the issue we'll set out to resolve in this LGJ. To examine this, let's imagine a hypothetical: You buy "Fabled Halos" from the Xbox Live Marketplace, and at a later date, you buy the "Broken Code" expansion DLC. Broken Code not only causes Fabled Halos Achievements to stop working, but it also causes save game glitches with another title, Fallin: New Scottsdale, and somehow gives you access to the full version of yet another game Fortress Fighters. You're mad. The developer of Fortress Fighters is mad. Whose fault is this and who has obligations to fix what?
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achievementscolumnsdlcglitchlaw-of-the-gamelgjmicrosoftreturnswarrantyxblmxboxTue, 31 Aug 2010 18:00:00 -040011|19614035https://www.joystiq.com/2010/08/02/kinect-story-a-case-study-in-international-trademark-trickery/https://www.joystiq.com/2010/08/02/kinect-story-a-case-study-in-international-trademark-trickery/https://www.joystiq.com/2010/08/02/kinect-story-a-case-study-in-international-trademark-trickery/#comments

I want to let everyone in on a little secret: Joystiq knew the name of the Kinect five days before it was announced to the public. For a variety of reasons, the story was never published, not the least of which was the possibility that "Kinect" was related to the ill-fated Kin rather than being the name for Natal. In any case, that is ancient history at this point. But where did this information come from? And more importantly, why is this relevant to the law at all? Well, it's a trademark issue, and one that's likely to be more and more prevalent going forward.

Everyone remembers countless times where trademark filings led to blog posts which outed new product names well in advance of their announcement. This is because trademark filings can be based on the "intent to use" a product name, rather than actually having the product available in the marketplace. "Intent to use" filings are a critical part of the modern product cycle, which requires a long term plan. It prevents someone else from showing up in stores the day before your product launches with a similar or identical name. But since filings at the Patent and Trademark Office are public record, it also lets everyone know what you're planning.
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kinectlawlaw-of-the-gamelegallgjmicrosofttrademarkxboxMon, 02 Aug 2010 19:30:00 -040011|19575524https://www.joystiq.com/2010/05/29/lgj-ea-online-pass-a-ticket-to-ftcville/https://www.joystiq.com/2010/05/29/lgj-ea-online-pass-a-ticket-to-ftcville/https://www.joystiq.com/2010/05/29/lgj-ea-online-pass-a-ticket-to-ftcville/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

By now, I'm sure everyone has seen the copious discussions on the EA Sports Online Pass. If, for some reason, you've been hiding in your closet because of an irrational fear of oil spills, or have been stuck in an airport without internet as a result of plumes of volcanic ash, the summary of these discussions is that EA will be charging people who purchase used versions of future EA Sports titles $10 for the use of certain online components of the game, which "can include basic online multiplayer, as well as group/league features, roster and playbook updates, downloads of user-created content." Not surprisingly, the announcement has been met with some frustration, some angry fist shaking and some relative acceptance from the consumer base. On the other hand, there has been a surprising amount of reports of puppies, unicorns and rainbows from analysts and even GameStop as a result of the Online Pass. While I hate to be the bringer of doom and gloom, it's just part of the lawyer's job description. What doom and gloom am I referring to? Government regulation.

But before I get too far ahead of myself, I want to first play a bit of devil's advocate with some of the statements related to the need for and logic behind the Online Pass. It's been argued that the need for these kind of charges stem from the newly emerging "long tail" of content that comes with disc-based games. And on the face of things, this does seem true. Games now have downloadable content that didn't exist years ago, and players continue to take advantage of this for some time. In fact, this is the basic model that MMO games have used for some time now, so why not see something similar added to these EA Sports games, with their roster downloads and other content?
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eaea-sportselectronic-artsfeatureslaw-of-the-gamelgjonline-passSat, 29 May 2010 03:30:00 -040011|19496197https://www.joystiq.com/2010/04/15/does-ps3-firmware-3-21-come-with-a-refund/https://www.joystiq.com/2010/04/15/does-ps3-firmware-3-21-come-with-a-refund/https://www.joystiq.com/2010/04/15/does-ps3-firmware-3-21-come-with-a-refund/#comments

By now you've installed the PS3 Firmware 3.21 update that removes the "Other OS" option (more or less) from your console. (You've at least read about it.) Besides angering the PS3 users who had been enjoying the Other OS feature, this incident has had some unintended consequences in the realm of consumer protection and warranty laws, both in the US and abroad. It's certainly a bit of an unusual situation, but hopefully this column will provide you a bit of an explanation on a global scale, and answer the question, can I get a refund?

For anyone who's not clear on what laws are involved, the broad areas of consumer protection and warranties both deal with protecting the purchasers of products from those who make or sell those products. The idea being that you should be entitled to purchase and own the product that you intended to buy, rather than something that's misleading, fraudulent, likely to break on its own, or broken. This is to help ensure the integrity of the marketplace, which helps secure consumer confidence. After all, aren't you more likely to buy a game console when you know it's a game console and (if new) covered by a warranty against defects, rather than an empty case or a box with bricks in it?
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amazoncolumnsconsumer-protectionfeatureslawlaw-of-the-gamelegallgjlinuxother-osps3-firmwareps3-firmware-2.31refundyellow-dog-linuxThu, 15 Apr 2010 15:45:00 -040011|19439810https://www.joystiq.com/2010/03/20/lgj-dawn-at-the-great-pyramid-scheme/https://www.joystiq.com/2010/03/20/lgj-dawn-at-the-great-pyramid-scheme/https://www.joystiq.com/2010/03/20/lgj-dawn-at-the-great-pyramid-scheme/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

GDC 2010 has come and gone, but many of the discussions I had with various developers, publishers, attorneys and other great attendees have actually left me with some curious issues to explore with you here on LGJ. The first such issue is one that actually relates to the long-known (but always fuzzy) area of the law that deals with multi-level marketing systems, the more legitimate cousin of what are commonly known as "pyramid schemes." These are the slightly more legitimate looking cousin of the Ponzi scheme (most recently in the news because of Madoff), but nonetheless create a "business model" doomed to fail. Accordingly, there are statutes in nearly all 50 states and in many countries barring these types of arrangements.

But why is this relevant to gaming at all? The advent of the referral model picked up by many social and online games is the potential problem area, and while the model itself may not suffer the same faults as a traditional pyramid scheme, it could nonetheless violate the laws in that area. After all, those laws don't contemplate digital goods, which can suffer no scarcity and basically no cost to product.
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featureslawlaw-of-the-gamelgjmulti-level-marketingpyramidpyramid-schemeSat, 20 Mar 2010 03:00:00 -040011|19404092https://www.joystiq.com/2010/02/16/lgj-dantes-infringement-or-lack-thereof/https://www.joystiq.com/2010/02/16/lgj-dantes-infringement-or-lack-thereof/https://www.joystiq.com/2010/02/16/lgj-dantes-infringement-or-lack-thereof/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

While I'm still waiting for my copy of Dante's Inferno, I have been checking out the review sites, Achievement guides and message boards in preparation for the arrival of the game. One question that keeps being asked over and over again, between many different boards, is "How is EA not being sued over this game?" While the overwhelming majority of these posts reference God of War, I have even seen mention of a "license" to Inferno (as a part of the Divine Comedy). Before I begin, I know many people might have issue with me writing this before playing, but I can assure you between the videos available online and the demo, I've experienced enough of the game to be able to come to a simple conclusion: No infringement here.

Let's get the latter, more absurd suggestion off the table first. There's not now, nor will there ever a be, a license to Inferno, the epic poem by Dante. Why is that? It's a part of the public domain. It, as a work, would have been eligible for copyright had such laws been in place at the time, but even with the modern expansive rules, the copyright would have ended hundreds of year ago. After all, taking the normal 'life of the author plus 70 years' for works created after 1978 in the US, 70 years after Dante's death was 1391. We're well past 600 years after Dante's death at this point; in fact, 2021 will mark the 700 year anniversary of Dante's death, 10 times the length granted by statute. So, this particular statement was absurd even for forum posts, but the idea that Dante's Inferno infringes on God of War isn't much more sound.
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copyrightdantes-infernofeaturesgod-of-wargod-of-war-3god-of-war-iiiinfringementlawlaw-of-the-gamelawsuitlgjTue, 16 Feb 2010 03:00:00 -050011|19351245https://www.joystiq.com/2010/01/29/lgj-wait-its-not-a-derivative/https://www.joystiq.com/2010/01/29/lgj-wait-its-not-a-derivative/https://www.joystiq.com/2010/01/29/lgj-wait-its-not-a-derivative/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

I noticed an interesting point brought up in the comments to the last LGJ: that the new NBA Jam was certainly a derivative work, so even if the trademark issue weren't a problem, the holder of the copyright to the original game could certainly bring suit for copyright infringement. Given that no one seems to know who acquired those rights in the Midway dissolution, I can see why this is brought up as an issue. However, a deeper look at the derivative works analysis suggests that EA's NBA Jam might not be a derivative at all; of course, much of this depends on the final product, which we have yet to see.

The old standby statement that sequels are derivative works is, for the most part, a true one in the broad context of all copyrighted works. After all, sequels to books and movies are derivatives, or at least I cannot think of a single sequel that is not one in those media. And for the most part, game sequels are derivatives as well, but not always. And to understand the difference, you have to look at what a derivative work is, what it isn't, and how sequels are different in a book and movie context than they can be in a game context.
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copyrightderivative-workderivativesfeatureslawlaw-of-the-gamelgjnba-jamFri, 29 Jan 2010 08:00:00 -050011|19330821https://www.joystiq.com/2010/01/20/lgj-nagging-trademark-questions/https://www.joystiq.com/2010/01/20/lgj-nagging-trademark-questions/https://www.joystiq.com/2010/01/20/lgj-nagging-trademark-questions/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

So, you heard the rumors about EA working on NBA Jam, and then the confirmation of a new NBA Jam for the Wii, and you, like so many other people, thought to yourself, "Hey, what ever happens to trademarks that aren't being used? And why can't we figure out what's going on with NBA Jam before the press release by searching the Trademark office?" Well, I'm glad you asked, because these are questions that it's high time I answered. Most people have a good idea that a trademark is a brand name or logo, and most people know that they can be registered with the government to be better protected. But what about those other general trademark issues? LGJ has focused on trademark disputes on many occasions, but we're overdue to go over some of the expanded trademark basics for the benefit of the Joystiq readers.

So, with trademarks, as with copyrights, there's a common law protection as well as a Federal registry in the US. There are also state registrations for trademarks, but, ultimately, the Federal registry offers the greatest protection. In fact, there is a whole list of benefits to registration. But the point remains, simply using a name for a product creates at least some level of trademark protection. From a practical sense, though, as long as you qualify for a registered trademark, it's much better to have a registered trademark. And that trademark can basically last forever as long as you meet two relatively straightforward conditions.
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featureslawlaw-of-the-gamelgjlicensingnba-jamtrademarktrademark-licensingtrademarksWed, 20 Jan 2010 03:00:00 -050011|19307799https://www.joystiq.com/2009/12/29/lgj-cross-licensing-complications/https://www.joystiq.com/2009/12/29/lgj-cross-licensing-complications/https://www.joystiq.com/2009/12/29/lgj-cross-licensing-complications/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

You may have seen the news that ASCAP, one of the major music licensing groups, is asking for royalties over Guitar Hero arcade units because they view them as jukeboxes. This kind of story demonstrates a gray area that LGJ has touched on before: music down stream licensing in games. Given just how nebulous and complex this can be, it seems as though this is an appropriate time to discuss the issue in full. It's a complexity that speaks to the age of the industry, and just how many elements out there really haven't been sorted out as well as other media, like movies and television, have. It's also something that doesn't just affect game developers, but also establishment owners and musicians, like frequent Guitar Hero artist An Endless Sporadic.

This is one of those instances where there are so many moving pieces it's difficult to determine the most logical point to begin. The idea of collective music licensing is probably as good a place as any. Copyright law dictates that the creator of a work holds certain rights to that work, which we've discussed at length in LGJ. Based on those rights, if you want to integrate a copyrighted work into another work, you would need a license. As you could imagine, however, if you're creating a film or running a radio station, tracking down each and every artist for every song you want to use would be a labor intensive process that would likely never end. Enter companies like ASCAP and BMI as the solution to that very problem.
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arcadecopyrightfeaturesguitar-herolawlaw-of-the-gamelgjmusicmusic-gamesTue, 29 Dec 2009 00:01:00 -050011|19292388https://www.joystiq.com/2009/12/05/lgj-ip-police-arrest-this-man-he-talks-in-torrents/https://www.joystiq.com/2009/12/05/lgj-ip-police-arrest-this-man-he-talks-in-torrents/https://www.joystiq.com/2009/12/05/lgj-ip-police-arrest-this-man-he-talks-in-torrents/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

I would imagine anyone reading this column has seen the coverage of the UK government's plan to create a "Pirate Finder General" and other new anti-piracy activities. The Pirate Finder General would have exceptionally broad powers to find and punish pirates with little supervision in an almost Judge Dredd-esque "I am the law!" kind of way. Of course, the whole matter is couched as a necessary measure to protect rights holders, ignoring what impact the ability to permanently revoke use of the internet might have on the average household. To me, this is just another sign of the times in the constantly tumultuous intellectual property ecosystem. While the situation could certainly turn out poorly for our friends in the UK, could something like this ever happen in the United States? The answer might not be as clear cut as you think.

We have been over intellectual property topics of all shapes and sizes in the history of LGJ, and the one universal truth is that intellectual property rights exist for one reason: to balance the rights needed by IP producers to be able to profit from their work with the rights needed by IP consumers to be able to enjoy those works. The concept of intellectual property has never been about granting unlimited power to rights holders, nor unrestricted access to consumers. However, since the advent of the Internet, we have been in the middle of a digital arms race between pirates and various parts of the entertainment industry, which we have seen to have substantial resources and connections given some of the legal changes like the UK law cited above or the infamous Anti-Counterfeiting Trade Agreement. Both sides have, at times, taken unsustainable or unrealistic positions, be that utopian unrestricted access to all intellectual property or draconian restrictions to simple use, like the position that ripping a CD you purchased to your iPod is copyright infringement.
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copyrightfeaturesintellectual-propertylawlaw-of-the-gamelgjpiracypiracy-solutionsSat, 05 Dec 2009 00:01:00 -050011|19265932https://www.joystiq.com/2009/11/23/lgj-gamings-professional-plaintiffs-and-class-actions/https://www.joystiq.com/2009/11/23/lgj-gamings-professional-plaintiffs-and-class-actions/https://www.joystiq.com/2009/11/23/lgj-gamings-professional-plaintiffs-and-class-actions/#commentsMark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

The term "professional plaintiff" is thrown out at the idea that some people make their living as someone who partners with an attorney to bring so many lawsuits that their entire livelyhood rests on suing people. Googling the term will bring up dozens of results in many different areas of the law, but a series of events this week made me wonder if the game industry might just be the next target of this kind of behavior. Specifically, the reports of a class action over Xbox Live bannings and reports that the same person who sued Sony over being banned in Resistance is now suing Microsoft over red rings and Nintendo over homebrew.

So how does this professional plaintiff idea work? Speaking extremely generally, to bring a lawsuit, someone has to have standing, that is they suffered an injury and are substantially related to the harm that caused that injury so that they can sue over it. Past allegations of professional plaintiffs have often been related to suits related to the Americans with Disabilities Act, such that one disabled person is suing multiple establishments because they have standing to sue based on the lack of compliance with the Act. I'm sure many readers are thinking, "But how would this work in gaming? There are no gaming statutes that could give gamers standing to sue like that." Well, it's a pretty straightforward answer, actually.
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class-actioncolumnslawlaw-of-the-gamelawsuitlegallgjprofessional-plaintiffMon, 23 Nov 2009 17:30:00 -050011|19248753https://www.joystiq.com/2009/11/07/lgj-read-the-fine-print/https://www.joystiq.com/2009/11/07/lgj-read-the-fine-print/https://www.joystiq.com/2009/11/07/lgj-read-the-fine-print/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Well, after the incident with Courtney Love and Kurt, it looks like the whole issue of famous musicians in games is back in the press with No Doubt suing Activision over Band Hero. A one time event is an anomaly, but twice in just a few months suggests something else. Of course, both of these all tie back to the contract, and since I'm a transactional attorney who spends the majority of most days negotiating and drafting agreements like these, I'm hoping I can shed a little light on what might be causing the problems. Since I wasn't involved in these particular negotiations nor have I read these contracts, all of what I'm presenting is speculation.

But before I begin, I suppose I should answer the simple question, "What is a contract?" I assume that most people reading this have at least some idea, but just in case, it's worth describing in detail. A contract is a legally binding agreement between two parties to perform certain promises in the future. In theory, to form a contract there are five elements: Offer and acceptance, consideration, intent, capacity, and formalities. In reality, it's fairly simple. The parties must have a meeting of the minds, that is agree to the same terms, which is often viewed as an offer by one party and acceptance by the other. Each party must put up something of value, called consideration, for the contract to be valid. The parties must intend to enter into a contract, and be of the appropriate mental capacity to enter into the agreement. And then the agreement is generally recorded in writing, as most jurisdictions have rules that require written agreements, which is then signed by the parties. And that is how a contract is born, in theory anyway.
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activisionband-herocolumnscontractcontract-lawcontractslawlaw-of-the-gamelawsuitlgjno-doubtSat, 07 Nov 2009 02:00:00 -050011|19227226https://www.joystiq.com/2009/10/24/lgj-revenge-of-the-regulators/https://www.joystiq.com/2009/10/24/lgj-revenge-of-the-regulators/https://www.joystiq.com/2009/10/24/lgj-revenge-of-the-regulators/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

There's an old saying by Benjamin Franklin: "The definition of insanity is doing the same thing over and over and expecting different results." By that definition, most of the attempts to regulate video game content are insanity. Most have taken the same approach, with the exception of Jack Thompson's last attempt in Utah, which at least took a new angle. It's for this reason that I'm always interested in new takes on the now tiresome idea of regulating game content, and when GamePolitics posted one such new research paper by Renee Newman Knake, Assistant Professor at Michigan State University College of Law, earlier this week, I took the time to read it. But when you boil down this "new approach," is it really something novel, or just more "insanity?" Well, that's what we're going to explore today. I do want to say, before I get started, that much of the legal analysis is relatively sound, and as many problems as I have with this paper, the author does deserve some credit for those parts of the analysis.

The paper's main focus is a discussion of "ecogenerism," and thus my discussion will largely be a dissection of the notable flaws in this approach. However, it is worth noting outright that this entire paper either makes its agenda quite clear from the outset or frames the debate in a less than accurate way to make the discussion seem greater than it is, as it starts from the basic flawed premise that we have "proven" a "causal" link between media violence, specifically video game violence, and real world violence. Even a cursory read over sites like VG Researcher and GamePolitics indicate the contrary. The supposition further ignores any benefits games may provide. Most importantly, it still ignores many of the fundamental flaws in video game research that have been pointed out in great detail. And the paper even ignores the more recent FTC data on the sale of violent games to children in favor of outdated metrics in order to cast a more negative light. But even ignoring this, the ecogenerism argument still has some substantial shortcomings.
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columnsgovernmentgovernment-regulationlaw-of-the-gamelgjregulationsviolenceSat, 24 Oct 2009 02:00:00 -040011|19207445https://www.joystiq.com/2009/10/10/lgj-3d-dot-game-infringement/https://www.joystiq.com/2009/10/10/lgj-3d-dot-game-infringement/https://www.joystiq.com/2009/10/10/lgj-3d-dot-game-infringement/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

If you're like me, then you've likely been following Joystiq's coverage of 3D Dot Game Heroes and thinking "I really, really hope this gets translated and released in the US." After all, if you're a gamer like me then you love the idea of a 3D homage to the 2D games you grew up with. Of course, it's less likely that you're a lawyer like me, and so it's also less likely that you read through the comments and had an immediate reaction to the countless cries of copyright infringement in the game. Those repetitive, vocal cries have brought me to this column, which aims to answer the big question: is 3D Dot Game Heroes copyright infringement?

Let me start off by saying the analysis here is just my opinion, and a court could always find otherwise. Where this discussion really needs to start is what elements seem to be infringing. Now would be a good time to view the trailer or some screenshots, if you haven't yet. The main complaints I've heard, and can see from the trailer, are the environments (both overworld and dungeon) bear a striking resemblance to the Zelda universe (The Legend of Zelda and Link to the Past, specifically), while the hero characters bear a striking resemblance to those from the Final Fantasy and Dragon Warrior past. Some of the monsters also bear quite a resemblance to Zelda baddies. And, of course, the music is certainly inspired by classic Zelda music. So, case closed, right? Well, no, that's not how copyright infringement works.
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3d-dot-game-heroes3d-game-heroesatluscopycatcopyrightcopyright infringementcopyrightinfringementfeatureslawlaw-of-the-gamelgjsilicon-studioSat, 10 Oct 2009 01:00:00 -040011|19191075https://www.joystiq.com/2009/09/29/lgj-products-liabilodst/https://www.joystiq.com/2009/09/29/lgj-products-liabilodst/https://www.joystiq.com/2009/09/29/lgj-products-liabilodst/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Something that comes up from time to time in the gaming world is faulty products. Or potentially faulty products. Most recently, it seems to be Halo 3: ODST at the center of the issue (which, for the record, I've had no trouble with thus far), but the issue has touched numerous games, including Guitar Hero III, and consoles. While most people might lump all this together into 'stuff that's broken,' the reality is it touches two legal topics: warranty and products liability.

To make the distinction between the two simple, a warranty makes sure you get a working product, and products liability makes the manufacturer liable for damages the product may cause because of defects. Both concepts are ones that arise from state law, and thus the exact provisions do vary among the US states, and of course they vary between countries. But there are once again some general rules that can be applied to the ideas, as well as some complexities that enter specific to the gaming world.
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columnslawlaw-of-the-gamelgjproducts-liabilitywarrantyTue, 29 Sep 2009 23:00:00 -040011|19173306https://www.joystiq.com/2009/09/15/lgj-come-as-your-avatar-smells-like-lawsuit-nevermind/https://www.joystiq.com/2009/09/15/lgj-come-as-your-avatar-smells-like-lawsuit-nevermind/https://www.joystiq.com/2009/09/15/lgj-come-as-your-avatar-smells-like-lawsuit-nevermind/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

The well publicized dispute over the use of an avatar of Kurt Cobain in Guitar Hero 5 has provided a good backdrop to discuss the 'right of publicity.' For anyone who doesn't want to take time to read the stories, here's a summary. Guitar Hero 5 includes Kurt Cobain as an unlockable playable avatar, much like previous titles in the series have done with other rock stars. Shortly after release, Courtney Love expressed her distaste at the use of Kurt, and Activision has stated Love signed an agreement allowing the use. Since then, other former Nirvana members have stated they think the avatar should be limited to performances of Nirvana songs.

Kurt's in-game likeness is governed by the part of the law called the 'right of publicity,' also called the 'right of personality' or 'personality rights.' In the US, that is unfortunately a complicated subject. Unlike other intellectual property rights, the right of publicity is governed by the states, not federal laws. So, unlike copyright or trademark, the exact rules of the right of publicity game change in every state. This, of course, makes the topic difficult to discuss and analyze, but there are some general theories about the right that can be discussed on a universal level.
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colimnsguitar-hero-5lawlaw-of-the-gamelawsuitlgjright-of-publicityTue, 15 Sep 2009 01:00:00 -040011|19158605https://www.joystiq.com/2009/09/05/lgj-you-down-with-fcc/https://www.joystiq.com/2009/09/05/lgj-you-down-with-fcc/https://www.joystiq.com/2009/09/05/lgj-you-down-with-fcc/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

The Federal Communications Commission was created by the Communications Act of 1934 as the successor to the Federal Radio Commission. The FCC was originally tasked with managing all non-governmental use of the radio waves, as well as managing the telephone infrastructure. The initial rationale for managing the airwaves was relatively straightforward: no one could own the air or frequencies, and unless there was someone managing the use of the airwaves, broadcasting would fall into chaos. (Just imagine if there was no system in place to determine and assign broadcast frequencies.)

More importantly, there was a strong hope that the telephone system would work on a national level, and so consolidating management of these two key communication forces made sense. Over time, the organizations control has extended to all uses of the wireless spectrum, as well as all interstate and international telecommunications.
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columnsfccgovernmentlawlaw-of-the-gamelgjSat, 05 Sep 2009 03:00:00 -040011|19151759https://www.joystiq.com/2009/08/21/lgj-welcome-to-the-big-leagues-of-deception/https://www.joystiq.com/2009/08/21/lgj-welcome-to-the-big-leagues-of-deception/https://www.joystiq.com/2009/08/21/lgj-welcome-to-the-big-leagues-of-deception/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

There are, in the legal profession, certain kinds of activities that really make a statement after the fact about just how big a company is. One of those activities is using subterfuge in either getting a deal done or in filing with the government. When I say subterfuge, I don't mean with the intent to defraud anyone, but rather with the intent that things be kept a secret. Walt Disney used dozens of companies to acquire the land that would later become Disney World, and now Sony is using alternate entities to file for FCC clearances on the PS3 Slim. Of course, I'm sure many of you are wondering how all this works, and why companies go to all this trouble.

The why is a slightly simpler answer than the how. Put simply: the company doesn't want the public to know. The reasons for the why are pretty varied. In Sony's case, they were trying to preserve the surprise we've talked about in previous LGJ columns. In the Disney case, they were trying to prevent people from either buying up the land they were trying to acquire to then re-sell it to Disney at a huge markup or prevent people from prospectively buying up all the land around the development. While a theme park is an extreme example, the same could apply if, say, Microsoft, decided to build a new campus somewhere other than Redmond.
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deceptionfcclawlaw-of-the-gamelgjps3-slimsonyFri, 21 Aug 2009 02:00:00 -040011|19135349https://www.joystiq.com/2009/08/13/lgj-first-sale-and-digital-distribution/https://www.joystiq.com/2009/08/13/lgj-first-sale-and-digital-distribution/https://www.joystiq.com/2009/08/13/lgj-first-sale-and-digital-distribution/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Ever since the Glideropinion was handed down late last year, there's been a resurgence of calls for courts to uphold the first sale doctrine with regard to all software. One such suit, featured in the latest Jurimetrics, concerned ligation over consumers as "owners" versus "licensees," since different copyright rights are granted based on the particular status. The court determined that players were licensees, thus negating certain rights of owners. We've talked about first sale before in LGJ, but generally in the context of retail products. In the context of retail games, no matter where you stand on the "owner" versus "licensee" position, nothing is stopping you from reselling the copy of the game you purchased.

Digital distribution changes this dynamic dramatically, however. As digital distribution mechanisms become more and more popular, it seems inevitable that the courts will have to eventually weigh in further on the owner versus licensee question. In fact, if those who run digital distribution systems wish to steer well clear of potential government involvement in their businesses, inclusion of certain features may mitigate the first sale question so that consumers have more rights and aren't in need of protection in that regard.
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copyrightdigital-distributionfirst-sale-doctrinelawlaw-of-the-gamelgjlicenselicensingThu, 13 Aug 2009 20:00:00 -040011|19122992https://www.joystiq.com/2009/07/21/lgj-fan-sequel-still-not-legal/https://www.joystiq.com/2009/07/21/lgj-fan-sequel-still-not-legal/https://www.joystiq.com/2009/07/21/lgj-fan-sequel-still-not-legal/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Lots of news has been popping up lately about fan-made sequels to some of the most beloved games of bygone days, Chrono Trigger and Star Fox being just two of the more notable examples. As most of you have likely noticed, these games follow a pretty predictable pattern: a bunch of fans put in a ton of work on a sequel to their favorite game, those fans tell other fans until that project ends up getting noticed by the blog-o-sphere, and then the lawyers of the original game maker eventually squash the project to an often loud outcry from the fan community. It's the 21st century re-telling of the fan fiction legal drama, and when it comes to copyright law, the story really hasn't changed.

This all relates back to those rights that make up copyright, which we've discussed on a number of occasions in this very column. In fact, the primary right is the control over derivative works, the very same right that is often cited in the machinima realm. In short, the holder of a copyright has the right to control works based on the work protected by copyright, such as sequels and prequels. That would seemingly address all fan sequels, correct? If the issue were that cut and dry, I likely wouldn't be taking the time to write a column on it.
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copyrightcopyright infringementcopyrightinfringementfan-fictionfan-madefeatureslawlaw-of-the-gamelawsuitTue, 21 Jul 2009 23:59:00 -040011|19105488https://www.joystiq.com/2009/07/16/lgj-and-still-they-want-to-take-away-our-games/https://www.joystiq.com/2009/07/16/lgj-and-still-they-want-to-take-away-our-games/https://www.joystiq.com/2009/07/16/lgj-and-still-they-want-to-take-away-our-games/#commentsEach week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

As of late, it seems I've become sort of a policy spokesman for issues concerning the government intervening in the game industry, especially in the wake of my debate with Jack Thompson. However, the discussion over whether violent content can be policed under the First Amendment is getting tired, and the courts have universally declared "no" at this point. Rather than go down that road again, I want to discuss two new ways that the government could attack games; one of which came up in the debate itself.

The first is probably the more mundane of the two, and it's the seemingly frequent specter of imposing political correctness on games. In fact, this issue came up yet again this week as a discussion related to not just Resident Evil 5, but also Left 4 Dead 2 and Call of Juarez: Bound in Blood. Of course, the claims here were racism and cultural insensitivity. The irony is that now that the games themselves are seemingly more inclusive of characters other than white males and large breasted women, the assumption is automatically that use of more diverse settings and characters must have malicious motives, rather than crediting the industry for finally being more inclusive.
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columnsfeaturesfirst-amendmentgovernmentjack-thompsonlawlaw-of-the-gamelgjobesityThu, 16 Jul 2009 18:30:00 -040011|19099132